NO:

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 2018

STEVEN JACKSON, Petitioner,

v.

UNITED STATES OF AMERICA, Respondent.

On Petition for Writ of Certiorari to the United States Court of Appeals

for the Eleventh Circuit

PETITION FOR WRIT OF CERTIORARI MICHAEL CARUSO Federal Public Defender Vanessa L. Chen Assistant Federal Public Defender Counsel of Record 150 West Flagler Street, 17th Floor Miami, Florida 33130 Telephone No. (305) 530-7000

Counsel for Petitioner

i

QUESTION PRESENTED FOR REVIEW

Does a Florida robbery conviction categorically require the use of

“violent force” as defined in Curtis Johnson v. United States, 559 U.S.

133, 140 (2010) due to its “overcoming resistance” element, if that

element can be satisfied by such minor conduct as bumping the victim,

unpeeling the victim’s fingers to take money from his hand, or

engaging in a tug-of-war over a purse?

ii

INTERESTED PARTIES

There are no parties to the proceeding other than those named in the caption

of the case.

iii

TABLE OF CONTENTS

QUESTION PRESENTED FOR REVIEW .................................................................... i

INTERESTED PARTIES .............................................................................................. ii

TABLE OF AUTHORITIES ......................................................................................... iv

PETITION ...................................................................................................................... 1

OPINION BELOW ......................................................................................................... 1

STATEMENT OF JURISDICTION .............................................................................. 2

STATUTORY PROVISIONS INVOLVED .................................................................... 3

STATEMENT OF THE CASE ....................................................................................... 4

REASON FOR GRANTING THE WRIT ...................................................................... 9

A. The Eleventh and Ninth Circuits are intractably divided on whether a Florida robbery conviction categorically requires the Curtis Johnson level of “violent force” .......................................................................................... 9

B. Other circuits have considered analogous robbery offenses with the

same “overcoming resistance” element that derives from the common law, and their conclusions likewise conflict with the Eleventh Circuit .......... 14

C. The decision below is wrong ............................................................................. 24

D. This is an ideal vehicle for certiorari ............................................................... 26

CONCLUSION ............................................................................................................. 29

iv

TABLE OF AUTHORITIES

Cases

Baxter v. United States,

No. 17-6991 (petition filed Dec. 4, 2017) .................................................................. 16

Benitez-Saldana v. State,

67 So.3d 320 (Fla. 2nd DCA 2011) ................................................................... passim

Bobby Jo Hardy v. United States,

No. 17-11275 (11th Cir. Aug. 11, 2017) ........................................................ 14, 15, 16

Conde v. United States,

No. 17-5772 (petition filed Aug. 24, 2017) ............................................................... 18

Davis v. United States,

No. 17-5543 (petition filed Aug. 8, 2017) ........................................................... 15, 18

Descamps v. United States,

133 S. Ct. 2276 (2013) ......................................................................................... 20, 34

Flores v. Ashcroft,

350 F.3d 666 (7th Cir. 2003) ..................................................................................... 31

Foster v. State,

596 So.2d 1099 (Fla. 5th DCA 1992) ....................................................................... 19

Harris v. United States,

No. 16-8616 (petition filed April 4, 2017)................................................................. 18

Hayes v. State,

780 So. 2d 918 (Fla. 1st DCA 2001) ........................................................................... 12

v

Hayes v. State,

780 So.2d 918 (Fla. 1st DCA 2001) .................................................................. passim

Henderson v. Commonwealth,

2000 WL 1808487 (Va. Ct. App. Dec. 12, 2000) ....................................................... 23

In re Boggess,

2005 WL 3344502 (Ohio Ct. App. 2005) ............................................................. 25, 28

James v. United States,

No. 17-6271 (petition filed Oct. 3, 2017) ............................................................ 15, 34

Johnson v. State,

612 So.2d 689 (Fla. 1st DCA 1993) ...................................................................... 7, 12

Johnson v. United States,

559 U.S. 133(2010) ............................................................................................ passim

Jones v. Commonwealth,

26 Va. App. 736, 496 S.E.2nd 668 (1998) ................................................................. 23

Jones v. United States,

No. 17-6140 (petition filed Sept. 25, 2017)............................................. 15, 23, 27, 28

Lane v. State,

763 S.W.2d 785 (Tex. Crim. App. 1989) ................................................................... 17

Mathis v. United States,

135 S. Ct. 2243 (2016) ......................................................................................... 20, 34

Maxwell v. Commonwealth,

165 Va. 860, 183 S.E. 452 (1936) .............................................................................. 23

vi

Mays v. United States,

No. 17-6664 (petition filed Nov. 2, 2017) ................................................................. 16

Middleton v. United States,

No. 17-6276 (petition filed Oct. 3, 2017) .................................................................. 15

Mims v. State,

342 So.2d 116 (Fla. 3rd DCA 1977) .......................................................................... 13

Moncrieffev. Holder,

133 S. Ct. 1678 (2013) ................................................................................... 20, 22, 26

Montsdoca v. State,

93 So.157 (Fla. 1922) ........................................................................................ passim

Orr v. United States,

No. 17-6577 (petition filed Oct. 26, 2017) ................................................................ 16

Pace v. United States,

No. 17-7140 (petition filed Dec. 18, 2017) ................................................................ 16

Parnell v. United States,

818 F.3d 974 (9th Cir. 2016) ..................................................................................... 13

Phelps v. United States,

No. 17-5745 (petition filed Aug. 24, 2017) ............................................................... 15

Reeves v. United States,

No. 17-6357 (petition filed Oct. 3, 2017) .................................................................. 16

Repress v. United States,

No. 17-7391 (petition filed Jan. 9, 2017) .................................................................. 16

vii

Rigell v. State,

782 So.2d 440 (Fla. 4th DCA 2001) .......................................................................... 29

Rivera v. United States,

No. 17-6374 (petition filed Oct. 12, 2017) ................................................................ 16

Robinson v. State,

692 So.2d 883 (Fla. 1997) ........................................................................... 6, 7, 11, 12

Samuel Johnson v. United States,

135 S. Ct. 2551 (2015) ....................................................................................... passim

Sanders v. State,

769 So.2d 506 (Fla. 5th DCA 2000) .................................................................. passim

Santiago v. State,

497 So. 2d 975 (Fla. 4th DCA 1986) ......................................................................... 12

Shotwell v. United States,

No. 17-6540 (petition filed Oct. 17, 2017) ................................................................ 16

State v. Baker,

452 So.2d 927 (Fla. 1984) ................................................................................. 8, 9, 13

State v. Blunt,

193 N.W.2d 434 (Neb. 1972) ..................................................................................... 17

State v. Carter,

29 Ohio App.3d 148, 504 N.E.2d 469 (1985) ............................................................ 24

State v. Chance,

662 S.E.2d 405 (N.C. Ct. App. 2008) .................................................................. 21, 28

viii

State v. Curley,

939 P.2d 1103 (N.M. 1997) ....................................................................................... 17

State v. Eldridge,

677 S.E.2d 14 (N.C. Ct. App. 2009) .................................................................... 21, 28

State v. Grant,

1981 WL 4576 (Ohio Ct. App. Oct. 22, 1981) ..................................................... 25, 28

State v. John,

50 N.C. 163 (1857) .................................................................................................... 22

State v. Juhasz,

2015 WL 5515826 (Ohio Ct. App. 2015) ....................................................... 18, 25, 26

State v. Robertson,

531 S.E.2d 490 (N.C. Ct. A pp. 2000) ........................................................... 18, 21, 22

State v. Robertson,

740 A.2d 330 (R.I. 1999) ........................................................................................... 17

State v. Royal,

490 So.2d 44 (Fla. 1986) ..................................................................................... 18, 19

State v. Sawyer,

29 S.E.2d 34 (N.C. 1944) ..................................................................................... 20, 27

State v. Sein,

590 A.2d 665 (N.J. 1991) .......................................................................................... 17

State v. Stecker,

108 N.W.2d 47 (S.D. 1961) ....................................................................................... 17

ix

Stokeling v. United States,

No. 17-5554 (petition filed Aug. 4, 2017) ........................................................... 15, 18

Taylor v. United States,

495 U.S. 575 (1990) ................................................................................................... 34

United States v. Castleman,

572 U.S. __, 134 S. Ct. 1405 (2014) .................................................................... 30, 32

United States v. Dowd,

451 F.3d 1244 (11th Cir. 2006) ............................................................................. 6, 10

United States v. Fritts,

841 F.3d 937 (11th Cir. Nov. 8, 2016) .............................................................. passim

United States v. Gardner,

823 F.3d 793 (4th Cir. 2015) ............................................................................. passim

United States v. Geozos,

870 F.3d 890 (9th Cir. Aug. 29, 2017) .............................................................. passim

United States v. Latellis Everette,

Slip op. (11th Cir. July 31, 2017) ....................................................................... 14, 15

United States v. Lockley,

632 F.3d 1238 (11th Cir. 2011) ............................................................................. 6, 10

United States v. Molinar,

___ F.3d ___, 2017 WL 5760565 (9th Cir. Nov. 29, 2017) ........................................ 26

United States v. Rosales-Bruno,

676 F.3d 1017 (11th Cir. 2012) ................................................................................... 9

x

United States v. Seabrooks,

839 F.3d 1326 (11th Cir. 2016) ................................................................................. 10

United States v. Steven Jackson,

___ Fed. Appx. ___, 2017 WL (11th Cir., 2017) ............................................... passim

United States v. Winston,

850 F.3d 677 (4th Cir. 2017) ............................................................................. passim

United States v. Yates,

866 F.3d 723 (6th Cir. 2017) ................................................................... 24, 26, 27, 29

Welch v. United States,

578 U.S. ___, 136 S. Ct. 1257 (2016) ........................................................................ 35

West v. State,

539 A.2d 231 (Md. 1988) ........................................................................................... 17

Williams v. Mayo,

126 Fla. 871, 172 So. 86 (1937) ................................................................................ 19

Williams v. United States,

No. 17-6026 (petition filed Sept. 14, 2017)............................................................... 15

Winn v. Commonwealth,

462 S.E.2d 911 (Va. 1995)......................................................................................... 18

Wright v. United States,

No. 17-6887 (petition filed Nov. 16, 2017) ............................................................... 16

xi

Statutes

18 U.S.C. § 111 ............................................................................................................... 4

18 U.S.C. § 922(g)(9) .................................................................................................... 31

18 U.S.C. § 924 ............................................................................................................... 3

18 U.S.C. § 924(e)................................................................................................. passim

18 U.S.C. § 924(e)(2)(B)(i) ............................................................................................ 14

18 U.S.C. § 922(g)(1) ...................................................................................................... 4

28 U.S.C. § 1254(1) ........................................................................................................ 2

28 U.S.C. § 2255 ................................................................................................. 2, 4, 5, 7

Ala. Code § 13A-8-43(a)(1) ........................................................................................... 17

Alaska Stat. § 11.41.510(a)(1) ..................................................................................... 17

Ariz .Rev. Stat. § 13-1901 ............................................................................................ 17

Ariz .Rev. Stat. § 13-1902 ............................................................................................ 17

Ariz. Rev. Stat. § 1904 ................................................................................................. 26

Conn. Gen. Stat. § 53a-133(1) ..................................................................................... 17

Del. Code Ann. tit. 11, § 831(a)(1) ............................................................................... 17

Fla. Stat. § 812.13. ................................................................................................... 3, 12

Fla. Stat. § 812.13(1) ............................................................................................ passim

Fla. Stat. § 812.13(2) .................................................................................................. 8, 9

Haw. Rev. Stat. § 708-841(1)(a) .................................................................................. 17

Me. Rev. Stat. tit. 17-A, § 651(1)(B)(1) ........................................................................ 17

Minn. Stat. § 609.24 ..................................................................................................... 17

xii

Mo. Rev. Stat. § 570.010(13) ........................................................................................ 17

Mo. Rev. Stat. § 570.025 .............................................................................................. 17

N.Y. Penal Law § 160.00(1) ......................................................................................... 17

Nev. Stat. § 200.380(1)(b) ............................................................................................ 17

Okla. Stat. tit. 21, § 791............................................................................................... 17

Okla. Stat. tit. 21, § 792............................................................................................... 17

Okla. Stat. tit. 21, § 793............................................................................................... 17

Or. Rev. Stat. § 164.395(1)(a) ...................................................................................... 17

Wash. Rev. Code § 9A.56.190 ...................................................................................... 17

Wis. Stat. § 943.32(1)(a) .............................................................................................. 17

Rules

Sup. Ct. R. 13.1 .............................................................................................................. 2

Sup. Ct. R. Part III ........................................................................................................ 2

1

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 2017

No:

STEVEN JACKSON, Petitioner,

v.

UNITED STATES OF AMERICA, Respondent.

On Petition for Writ of Certiorari to the United States Court of Appeals

for the Eleventh Circuit

PETITION FOR WRIT OF CERTIORARI Steven Jackson respectfully petitions this Court for a writ of certiorari to

review the judgment of the United States Court of Appeals for the Eleventh Circuit.

OPINION BELOW

The Eleventh Circuit’s opinion affirming the district court’s denial of

Petitioner’s motion to vacate his enhanced ACCA sentence pursuant to 28 U.S.C. §

2255, United States v. Steven Jackson, ___ Fed. Appx. ___, 2017 WL (11th Cir.,

2017), is included in Appendix A-1.

2

STATEMENT OF JURISDICTION

Jurisdiction of this Court is invoked under 28 U.S.C. § 1254(1) and Part III of

the Rules of the Supreme Court of the United States. The decision of the court of

appeals vacating the district court’s grant of Petitioner’s motion to vacate pursuant

to 28 U.S.C. § 2255, was entered on November 27, 2017. This petition is timely filed

pursuant to Supreme Court Rule 13.1.

3

STATUTORY PROVISIONS INVOLVED

18 U.S.C. § 924. Penalties

(e)(2) As used in this subsection – . . .

(B) the term ‘violent felony’ means any crime punishable by imprisonment for a term exceeding one year, ... , that –

(i) has as an element the use, attempted use, or

threatened use of physical force against the person of another.

Fla. Stat. § 812.13. Robbery (1975)

(1) “Robbery” means the taking of money or other property which may be the subject of larceny from the person or custody of another when in the course of the taking there is the use of force, violence, assault, or putting in fear. (2)(a) If in the course of committing the robbery the offender carried a firearm or other deadly weapon, then the robbery is a felony of the first degree . . . (b) If in the course of committing the robbery the offender carried a weapon, then the robbery is a felony of the first degree . . . (c) If in the course of committing the robbery the offender carried no firearm, deadly weapon, or other weapon, then the robbery is a felony of the second degree . . . (3) An act shall be deemed “in the course of committing the robbery” if it occurs in an attempt to commit robbery or in flight after the attempt or commission.

4

STATEMENT OF THE CASE

On February 9, 1996, after a jury trial, Mr. Jackson was convicted of one

count of being a felon in possession of a firearm, in violation of 18 U.S.C. §§

922(g)(1) and 924(e), and three counts of assault on a federal agent, in violation of

18 U.S.C. § 111. On May 22, 1996, the district court sentenced Mr. Jackson as an

Armed Career Criminal to 360 months’ imprisonment on Count 1 (felon in

possession of a firearm and the Armed Career Criminal Act) and 120 months’

imprisonment on Counts 2, 3, and 4 to run concurrent with each other and the 360

months on Count 1.

Mr. Jackson’s PSI did not specify which prior convictions were used to

enhance his sentence under the ACCA. At sentencing, the district court did not

announce any findings about which prior convictions were being used to support the

ACCA enhancement or about under which clause (residual or elements) the district

court believed those convictions to qualify as “violent felonies.”

On June 24, 2016, after this Court’s decision in Samuel Johnson v. United

States, 135 S.Ct. 2551 (2015) declaring the ACCA’s residual clause

unconstitutionally vague, the Eleventh Circuit granted Mr. Jackson authorization

to file a successive motion to vacate his sentence under § 2255. In its order granting

authorization, the Eleventh Circuit expressed doubt about whether Mr. Jackson’s

1975 robbery conviction and 1971 conviction for assault with intent to commit a

felony would still qualify under the elements clause.

5

That same day, Mr. Jackson, through counsel, filed his successive § 2255 with

the district court. In it he argued that his Florida robbery convictions no longer

qualified as ACCA predicates without residual clause, and without those convictions

as qualifiers his enhanced ACCA sentence could not stand.

On September 9, 2016, after reviewing the parties’ written objections to the

Amended Pre-Sentence Investigation Report, the district court granted Mr.

Jackson’s § 2255. It found that Mr. Jackson’s 1975 Florida robbery conviction and

his 1971 Florida assault with intent to commit a felony conviction did not qualify as

predicate “violent felonies” under the ACCA. Specifically, in reference to Florida

robbery, the district court reasoned that “it is apparent that [Mr. Jackson] pleaded

guilty to robbery when mere snatching sufficed” such that “pursuant

After holding a re-sentencing hearing, the Court imposed an amended non-

ACCA sentence of 324 months’ imprisonment total, which was comprised of 120

months’ imprisonment for Count 1 (felon in possession of a firearm) to run

concurrently with each of the three consecutive 108-month terms of imprisonment

for Counts 2, 3, and 4 (assault of a federal law enforcement officer). Mr. Jackson’s

prior sentence was 360 months’ imprisonment, comprised of 360 months’

imprisonment for Count 1 (felon in possession of a firearm) to run concurrently with

each of the three concurrent terms of 120 months’ imprisonment for Counts 2, 3,

and 4 (assault of a federal law enforcement officer).

The net difference in months between the original sentence and the amended

sentence is 36 months.

6

The government timely appealed.

During the pendency of the appeal, the Eleventh Circuit issued its decision in

United States v. Fritts, 841 F.3d 937 (11th Cir. Nov. 8, 2016), following its prior

precedents in United States v. Dowd, 451 F.3d 1244 (11th Cir. 2006), and United

States v. Lockley, 632 F.3d 1238 (11th Cir. 2011), and holding that a Florida armed

robbery conviction categorically qualified as an ACCA “violent felony” regardless of

the date of conviction. Fritts noted with significance that in Robinson v. State, 692

So.2d 883 (Fla. 1997), the Florida Supreme Court had confirmed that a mere

snatching was not sufficient for robbery in Florida, because robbery required

overcoming victim resistance. 841 F.3d at 942-943.

The government, in its opening and reply briefs, relied upon Fritts to argue

that the district court had erred in concluding that Johnson had rendered Florida

robbery no longer viable as a predicate “violent felony” for ACCA enhancement

purposes and consequently it had erred in granting Mr. Jackson’s § 2255 and re-

sentencing him without the ACCA enhancement.

In his answer brief to the Eleventh Circuit, Petitioner argued that his 1975

robbery conviction was categorically not a “violent felony” under the ACCA’s

elements clause for several reasons including, as pertinent here, that the post-

Robinson caselaw in Florida – namely, Sanders v. State, 769 So.2d 506, 507-508

(Fla. 5th DCA 2000); Johnson v. State, 612 So.2d 689, 690 (Fla. 1st DCA 1993);

Hayes v. State, 780 So.2d 918, 919 (Fla. 1st DCA 2001); and Benitez-Saldana v.

State, 67 So.3d 320, 323 (Fla. 2nd DCA 2011) – made clear that “overcoming

7

resistance” for purposes of the Florida robbery statute did not necessitate the Curtis

Johnson level of violent force. In fact, he noted, it had always been the law in

Florida, since Montsdoca v. State, 93 So.157, 159 (Fla. 1922), that the “degree of

force used” in a robbery “is immaterial.” The degree of force necessary to overcome

victim resistance, he explained, would always be a direct function of the degree of

resistance.

To the extent that Fritts ignored the Florida courts’ flexible interpretation of

the “quantum of force” element of a robbery conviction, Petitioner argued, Fritts was

inconsistent with prior circuit law, and under the prior panel precedent rule should

not control. Moreover, he argued, contrary to the district court, a sentence for

“armed robbery” under Fla. Stat. § 812.13(2) did not transform his categorically

non-violent robbery conviction into one for a “violent felony” since the Florida

Supreme Court had confirmed in State v. Baker, 452 So.2d 927 (Fla. 1984) that an

“armed robbery” under § 812.13(2) simply required “carrying” a weapon, not using

it. Indeed, he noted, other circuits had so held in reviewing convictions under

analogous statutes requiring only carrying – not use – for “armed robbery.”

While the appeal remained pending before the Eleventh Circuit, the Ninth

Circuit reached a directly opposite conclusion from Fritts in United States v. Geozos,

870 F.3d 890 (9th Cir. Aug. 29, 2017). Specifically, the Ninth Circuit held, a Florida

armed robbery conviction did not categorically qualify as an ACCA violent felony

since Fla. Stat. § 812.13(1) – both by its text, and as interpreted by the Florida

courts – did not require the use of “violent force.” On the latter point, the Ninth

8

Circuit specifically cited Benitez-Saldana (a case cited by Petitioner in his Eleventh

Circuit briefing) and found that the Eleventh Circuit in Fritts had “overlooked the

fact that if resistance itself is minimal, then the force used to overcome that

resistance is not necessarily violent force.” 870 F.3d at 901 (citing Montsdoca, 93 So.

at 159 (“[t]he degree of force used is immaterial”)).

In a letter of supplemental authority pursuant to Fed. R. App. P. 28(j),

Petitioner notified the Eleventh Circuit of Geozos. He pointed out that the “armed

nature” of the Florida robbery in Geozos did not make a difference to the Ninth

Circuit, since that court had found Florida law to be clear that an “armed robbery”

under Fla. Stat. § 812.13(2) could result from merely carrying a concealed firearm

or other deadly weapon during the course of a robbery, even if it is never displayed

and the victim remains unaware of it. 870 F.3d at 900-901 (citing State v. Baker,

452 So.2d at 929). Ultimately, he argued:

Under settled circuit precedent, this Court must defer to the state courts’ interpretation of the substantive elements of a state offense. United States v. Rosales-Bruno, 676 F.3d 1017, 1021 (11th Cir. 2012). Since the Florida courts, as Geozos recognizes, do not interpret the “overcoming resistance” element of robbery to require the use of violent force, Mr. Jackson’s ACCA sentence should be vacated.

On November 27, 2017, the Eleventh Circuit issued an unpublished decision

affirming the district court, based on Fritts. United States v. Steven Jackson, Nos.

16-17173 & 16-17334, 704 Fed. App’x 911 (11th Cir. Nov. 27, 2017) (unpublished).

The court noted that it was bound by its prior panel precedents in Dowd (2006),

Lockley (2011), Seabrooks (2016), and Fritts (2016) to conclude that Florida robbery

“qualifies categorically as a violent felony under the elements clause of the [Armed

9

Career Criminal] Act.” Jackson, 704 Fed. App’x at 912. It further noted that it was

bound to follow Dowd and Fritts ‘unless and until the . . . holding is overruled by the

Court sitting en banc or by the Supreme Court.’” Jackson, 704 Fed. App’x at 912.

REASONS FOR GRANTING THE WRIT

A. The Eleventh and Ninth Circuits are intractably divided on whether a Florida robbery conviction categorically requires the Curtis Johnson level of “violent force”

In United States v. Fritts, 841 F.3d 937 (11th Cir. 2016), the Eleventh Circuit

held that Florida robbery is categorically an ACCA violent felony. Id. at 943. The

court, notably, did not analyze Fritts’ armed robbery conviction any differently than

an unarmed robbery conviction, as the district court did below. According to the

Eleventh Circuit, both convictions failed to qualify as an ACCA violent felony for

the same reason: namely, according to Robinson v. State, 692 So.2d 883, 886 (Fla.

1997), overcoming victim resistance is a necessary element of any Florida robbery

offense. 841 F.3d at 942-944. The court assumed from the mere fact of “victim

resistance,” and the perpetrator’s need to use some physical force to overcome it,

that the offense was categorically a violent felony.

According to Fritts, it was irrelevant that Fritts’ own conviction pre-dated

Robinson since Robinson simply clarified what the Florida robbery statute “always

meant.” 841 F.3d at 943. But while Robinson did clarify that a mere sudden

snatching without any victim resistance is simply theft, not robbery, id. at 942-944,

what Robinson did not clarify was how much force was actually necessary to

overcome resistance for a Florida robbery conviction. Notably, decades before

10

Robinson, in Montsdoca v. State, 93 So. 157 (1922), the Florida Supreme Court had

held that the “degree of force” was actually “immaterial” so long as it was sufficient

to overcome resistance. Id. at 159. And the Eleventh Circuit in Fritts cited

Montsdoca as controlling as well. 841 F.3d at 943.

Although neither Montsdoca nor Robinson specifically addressed what degree

of force is necessary to overcome resistance under the Florida robbery statute, the

Florida intermediate appellate court have provided clarity as to the “least culpable

conduct” under the statute in that regard. Notably, several Florida appellate court

decisions have confirmed post-Robinson that victim resistance in a robbery may

well be quite minimal, and where it is, the degree of force necessary to overcome it

is also minimal. Specifically, Florida courts have sustained robbery convictions

under Fla. Stat. § 812.13 where a defendant simply: (1) bumps someone from

behind, Hayes v. State, 780 So. 2d 918, 919 (Fla. 1st DCA 2001); (2) engages in a

tug-of-war over a purse, Benitez-Saladana v. State, 67 So.3d 320, 323 (Fla. 2nd DCA

2011); (3) peels back someone’s fingers in order to take money from his clenched fist,

Sanders v. State, 769 So.2d 506, 507 (Fla. 5th DCA 2000); or (4) otherwise removes

money from someone’s fist, knocking off a scab in the process, Winston Johnson v.

State, 612 So.2d 689, 690-91 (Fla. 1st DCA 1993).

As one Florida court paraphrased the Florida standard, a robbery conviction

may be upheld in Florida based on “ever so little” force. Santiago v. State, 497 So.

2d 975, 976 (Fla. 4th DCA 1986). And as another court stated, the victim must

simply resist “in any degree;” where “any degree” of resistance is overcome by the

11

perpetrator, “the crime of robbery is complete.” Mims v. State, 342 So.2d 116, 117

(Fla. 3rd DCA 1977).

The Ninth Circuit recently recognized this in United States v. Geozos, 879

F.3d 890 (9th Cir. 2017), where it held that a Florida conviction for robbery,

whether armed or unarmed, fails to qualify as a “violent felony” under the elements

clause because it “does not involve the use of violent force within the meaning of

ACCA.” Id. at 900-901.1 In so holding, the Ninth Circuit found significant that

under Florida caselaw, “any degree” of resistance was sufficient for conviction, and

an individual could violate the statute simply by engaging “in a non-violent tug-of-

war” over a purse. Id. at 900 (citing Mims and Benitez-Saldana).

Notably, the Ninth Circuit – in coming to a decision that it recognized was at

“odds” with the Eleventh Circuit’s holding in Fritts – has rightly pointed out that

the Eleventh Circuit, “in focusing on the fact that Florida robbery requires a use of

force sufficient to overcome the resistance of the victim, has overlooked the fact

that, if resistance itself is minimal, then the force used to overcome that resistance

is not necessarily violent force.” Id. at 901 (citing Montsdoca, 93 So. at 159 (“The

degree of force used is immaterial. All the force that is required to make the offense

1 The Geozos Court correctly stated that whether a robbery was armed or unarmed makes no difference because an individual may be convicted of armed robbery for “merely carrying a firearm” during the robbery, even if the firearm is not displayed and the victim is unaware of its presence. 870 F.3d at 900-9901 (“As an initial matter, the armed nature of each of Defendant’s convictions does not make the conviction one for a violent felony;” citing State v. Baker, 452 So. 2d 927, 929 (Fla. 1984); following Parnell v. United States, 818 F.3d 974, 978–81 (9th Cir. 2016), which held that a Massachusetts conviction for armed robbery, which required only the possession of a firearm without using or even displaying it, does not qualify as a “violent felony” under the ACCA’s elements clause))(emphasis in original).

12

a robbery is such force as is actually sufficient to overcome the victim’s

resistance”))(emphasis in the original).

As is clear from Geozos, the Ninth and Eleventh Circuits are now directly in

conflict on an important and recurring question of Federal law: namely, whether the

minimal force required to overcome minimal resistance under the Florida robbery

statute categorically meets the level of “physical force” required by the ACCA’s

elements. In Curtis Johnson v. United States, 559 U.S. 133 (2010), the Court

explained that the meaning of “physical force” in 18 U.S.C. § 924(e)(2)(B)(i) “is a

question of federal law, not state law.” Id. at 138. And indeed, in the context of a

“violent felony” definition, “physical force” means “violent force,” which requires a

“substantial degree of force.” Id. at 140.

Given the Eleventh Circuit’s refusal to reconsider Fritts en banc in United

States v. Latellis Everette, Slip op. (11th Cir. July 31, 2017), followed by its

summary affirmance without requiring government briefing in Bobby Jo Hardy v.

United States, Slip op. at 3 (11th Cir. Aug. 11, 2017) (No. 17-11275),2 the circuit

conflict on that issue is demonstrably intractable at this point. It will not be

resolved without this Court’s intervention.

Notably, in decision after decision since Fritts, the Eleventh Circuit – which

applies its “prior panel precedent rule” rigidly – has reflexively adhered to Fritts. 2 In the Hardy order, the Eleventh Circuit found “summary affirmance based upon Fritts “appropriate because the government is clearly right as a matter of law, and no substantial question exists as to the outcome of the case.” It stated that “defendant’s “convictions categorically qualify as ‘violent felonies’ under the ACCA based on Fritts, and any doubt about that conclusion was put to rest when the Supreme Court denied certiorari in that case.” Slip op. at 3.

13

As of this writing, certiorari has been sought in multiple Eleventh Circuit cases

challenging Fritts’ holding that a Florida robbery conviction categorically requires

“violent force.” In addition to the instant petition, there are at present no less than

nineteen others—eighteen from the Eleventh Circuit, and one from the Fourth

Circuit—raising this issue.3 That conservative figure does not include the

numerous petitions that were filed and denied before Geozos. Nor does it include

the incalculable number of petitions that will be filed absent immediate

intervention by this Court. And notably, there is not simply now a direct circuit

conflict between the Ninth and Eleventh Circuits on whether Florida robbery

Florida robbery offense categorically requires the Curtis Johnson level of violent

force. The conflict actually extends much farther.

3 For the Eleventh Circuit petitions, see Stokeling v. United States, No. 17-5554 (petition filed Aug. 4, 2017); Davis v. United States, No. 17-5543 (petition filed Aug. 8, 2017); Phelps v. United States, No. 17-5745 (petition filed Aug. 24, 2017); Williams v. United States, No. 17-6026 (petition filed Sept. 14, 2017); Everette v. United States, No. 17-6054 (petition filed Sept. 18, 2017); Jones v. United States, No. 17-6140 (petition filed Sept. 25, 2017); James v. United States, No. 17-6271 (petition filed Oct. 3, 2017); Middleton v. United States, No. 17-6276 (petition filed Oct. 3, 2017); Reeves v. United States, No. 17-6357 (petition filed Oct. 3, 2017); Rivera v. United States, No. 17-6374 (petition filed Oct. 12, 2017); Shotwell v. United States, No. 17-6540 (petition filed Oct. 17, 2017); Mays v. United States, No. 17-6664 (petition filed Nov. 2, 2017); Hardy v. United States, No. 17-6829 (petition filed Nov. 9, 2017); Baxter v. United States, No. 17-6991 (petition filed Dec. 4, 2017); Pace v. United States, No. 17-7140 (petition filed Dec. 18, 2017); Repress v. United States, No. 17-7391 (petition filed Jan. 9, 2017); Wright v. United States, No. 17-6887 (petition filed Nov. 16, 2017). For the Fourth Circuit petition, see Orr v. United States, No. 17-6577 (petition filed Oct. 26, 2017).

14

B. Other circuits have considered analogous robbery offenses with the same “overcoming resistance” element that derives from the common law, and their conclusions likewise conflict with the Eleventh Circuit Florida, notably, is not alone in its use of an “overcoming resistance”

standard. In fact, most states permit robbery convictions where the degree of force

used is sufficient to overcome a victim’s resistance. Indeed, at least fifteen states

use some variation of this standard in the text of their statutes,4 while many others

(including Florida, North Carolina, Virginia, Colorado, and Ohio) have judicially

adopted it through case law.5

As has been detailed in several petitions for certiorari now pending before

this Court, see, e.g., Harris v. United States, No. 16-8616; Stokeling v. United States,

No. 17-5554; and Conde v. United States, No. 17-5772, this widely-applied

requirement of “victim resistance” in state robbery offenses has deep roots in the

common law. Common law robbery had an element labeled “violence,” but the term

“violence” did not imply a “substantial degree of force.” The general rule at common

4 See Ala. Code § 13A-8-43(a)(1); Alaska Stat. § 11.41.510(a)(1); Ariz. Rev. Stat. §§ 13-1901, 1902, 1904; Conn. Gen. Stat. § 53a-133(1); Del. Code Ann. tit. 11, § 831(a)(1); Haw. Rev. Stat. § 708-841(1)(a); Me. Rev. Stat. tit. 17-A, § 651(1)(B)(1); Minn. Stat. § 609.24; Mo. Rev. Stat. §§ 570.010(13), 570.025(1); Nev. Stat. § 200.380(1)(b); N.Y. Penal Law § 160.00(1); Okla. Stat. tit. 21, §§ 791, 792, 793; Or. Rev. Stat. § 164.395(1)(a); Wash. Rev. Code § 9A.56.190; Wis. Stat. § 943.32(1)(a). 5 See, e.g., Lane v. State, 763 S.W.2d 785, 787 (Tex. Crim. App. 1989); State v. Stecker, 108 N.W.2d 47, 50 (S.D. 1961); State v. Robertson, 740 A.2d 330, 334 (R.I. 1999); State v. Curley, 939 P.2d 1103, 1105 (N.M. 1997); West v. State, 539 A.2d 231, 234 (Md. 1988); State v. Blunt, 193 N.W.2d 434, 435 (Neb. 1972); State v. Sein, 590 A.2d 665, 668 (N.J. 1991); Winn v. Commonwealth, 462 S.E.2d 911, 913 (Va. 1995); People v. Davis, 935 P.2d 79, 84 (Colo. App. 1996); State v. Robertson, 531 S.E.2d 490 (N.C. Ct. A pp. 2000); State v. Juhasz, 2015 WL 5515826 at *2 (Ohio Ct. App. 2015).

15

law was that the degree of force used was “immaterial,” so long as it compelled the

victim to give up money or property.

In this vein, the Florida appellate courts, notably, have long recognized that

the underlying robbery offense originally described in Fla. Stat. § 812.13(1) was

common law robbery. See Montsdoca, 93 So. at 159 (reiterating the common law

rules that “[t]here can be no robbery without violence, and there can be no larceny

with it,” and that “the degree of force used is immaterial”); State v. Royal, 490 So.2d

44, 45-46 (Fla. 1986) (acknowledging that “the common law definition of robbery”

was “set forth in subsection (1)). As the Florida Supreme Court expressly

recognized in Royal, the requirement in § 812.13(1) that the taking be by “force,

violence, assault, or putting in fear” not only derived from the common law; the

Court thereafter interpreted that provision “consistent with the common law.” Id.

at 46 (citing Williams v. Mayo, 126 Fla. 871, 875, 172 So. 86, 87 (1937)).

The only change to the common law robbery offense incorporated into that

statutory provision occurred immediately after – and in response to – Royal, when

the Florida Legislature broadened the statutory offense to include the use of “force”

not only during a taking, but after it as well. See, e.g., Foster v. State, 596 So.2d

1099, 1107-1108 (Fla. 5th DCA 1992). Other than that, however, there has been no

change to the underlying “common law definition of robbery set forth in subsection

(1),” Royal, 490 So.2d at 46, to this day.

Given that the “overcoming resistance” element in Florida robbery derives

from the common law and has been interpreted consistently with the common law,

16

the conflict between the Ninth and Eleventh Circuit actually extends to other

circuits that have considered analogous common law robbery offenses. Notably, the

Fourth Circuit has now recognized that both North Carolina common law robbery

and Virginia common law robbery can be committed without violent force and are

not proper ACCA predicates for that reason. And the Sixth Circuit has held

similarly, with regard to Ohio statutory robbery, which – like Florida statutory

robbery – is modeled on common law robbery.

In United States v. Gardner, 823 F.3d 793 (4th Cir. 2015), the Fourth Circuit

held that the offense of common law robbery by “violence” in North Carolina did not

qualify as a “violent felony” under the ACCA’s elements clause because it did not

categorically require the use of “physical force.” 823 F.3d at 803-804. In reaching

that conclusion, however, the Fourth Circuit did not simply rely upon common law

principles. Rather, consistent with the categorical approach as clarified by this

Court in Moncrieffe, Descamps, and Mathis, the court thoroughly reviewed North

Carolina appellate law to determine the least culpable conduct for a North Carolina

common law robbery conviction. And notably, it was only after its thorough survey

of North Carolina law, that the Fourth Circuit concluded that a North Carolina

common law robbery by means of “violence” may be committed by any force

“sufficient to compel a victim to part with his property,” and that “‘[t]he degree of

force used is immaterial.’” Id. (quoting State v. Sawyer, 29 S.E.2d 34, 37 (N.C.

1944)). In fact, the Fourth Circuit noted, Sawyer’s definition “suggests that even de

17

minimis contact can constitute the ‘violence’ necessary for a common law robbery

conviction under North Carolina law.” Id. (emphasis in original).

The Fourth Circuit discussed two supportive North Carolina appellate

decisions in detail. Id. (discussing State v. Chance, 662 S.E.2d 405 (N.C. Ct. App.

2008), and State v. Eldridge, 677 S.E.2d 14 (N.C. Ct. App. 2009)). In Chance, the

Fourth Circuit noted, a North Carolina court had upheld a robbery conviction where

the defendant simply pushed the victim’s hand off a carton of cigarettes; that was

sufficient “actual force.” And in Eldridge, a different court upheld a robbery

conviction where a defendant merely pushed the shoulder of a store clerk, causing

her to fall onto shelves while the defendant took possession of a TV. Based on those

decisions, the Fourth Circuit concluded that “the minimum conduct necessary to

sustain a conviction for North Carolina common law robbery” does not necessarily

require “physical force,” and that the offense does not categorically qualify as a

“violent felony” under the elements clause. Id.6

Thereafter in United States v. Winston, 850 F.3d 677 (4th Cir. 2017), the

Fourth Circuit held that a conviction for Virginia common law robbery, which may

6 Although the Fourth Circuit did not discuss State v. Robertson, 531 S.E.2d 490 (N.C. Ct. App. 2000) in Gardner, the government had discussed Robertson in in its Gardner brief, and had correctly described Robertson as holding that mere “purse snatching” does not involve sufficient force for a common law robbery conviction in North Carolina. Brief of the United States in United States v. Gardner, No. 14-4533 at 46-49, 53 (4th Cir. Aug. 21, 2015). Robertson had expressly recognized that North Carolina followed “‘[t] rule prevailing in most jurisdictions” that “‘the force used . . . must be of such a nature as to show that it was intended to overpower the party robbed or prevent his resisting, and not merely to get possession of the property stolen.’” Id. at 509 (quoting State v. John, 50 N.C. 163, 169 (1857)(emphasis added by Robertson)). The Fourth Circuit in Gardner was undoubtedly aware from Robertson that North Carolina robbery required overcoming victim resistance.

18

be committed by either “violence or intimidation,” does not qualify as a “violent

felony” within the ACCA’s elements clause since – as confirmed by Virginia caselaw

– such an offense can be committed by only slight, non-violent force. Id. at 685.

The Fourth Circuit acknowledged in Winston that prior to Curtis Johnson, it

had held that a Virginia common law robbery conviction qualified as a “violent

felony” within the elements clause. However, citing Gardner, the Fourth Circuit

rightly found that such precedent was no longer controlling after (1) this Court in

Curtis Johnson not only redefined “physical force” as “violent force” but made clear

that federal courts applying the categorical approach were bound by the state

courts’ interpretation of their own offenses, and (2) in Moncrieffe “instructed that we

must focus on the ‘minimum conduct criminalized’ by state law.” Id. at 684.

Consistent with these intervening precedents, the Fourth Circuit carefully

examined for the first time in Winston how the Virginia state courts interpreted a

robbery “by violence or intimidation.” While noting that its prior decision in

Gardner was “persuasive,” the Fourth Circuit rightly acknowledged that its

“conclusion that North Carolina robbery does not qualify as a violent felony” did not

itself “compel a similar holding in the present case” because the court was required

to “defer to the [Virginia] courts’ interpretations of their own [] common law

offenses.” Winston, 850 F.3d at 685 n. 6.

Accordingly, as it had done in Gardner, the Fourth Circuit undertook a

thorough survey of Virginia appellate decisions on common law robbery. See id. at

684-685 (discussing in particular, and finding significant: Maxwell v.

19

Commonwealth, 165 Va. 860, 183 S.E. 452, 454 (1936); Henderson v.

Commonwealth, No. 3017-99-1, 2000 WL 1808487, at * 3 (Va. Ct. App. Dec. 12,

2000) (unpublished); and Jones v. Commonwealth, 26 Va. App. 736, 496 S.E.2nd

668, 670 (1998)). Citing these three decisions, the Fourth Circuit concluded that a

Virginia common law robbery “by violence” requires only a “‘slight’ degree of

violence;” that “anything which calls out resistance is sufficient;” and “such

resistance by the victim does not necessarily reflect use of ‘violent force.’” Winston,

850 F.3d at 684-685. And therefore, the Fourth Circuit expressly rejected the

precise assumption made by the Eleventh Circuit in Fritts without considering a

single Florida decision: namely, that force sufficient to overcome resistance in

Florida necessarily involves violent force. Winston, id. at 683. To the contrary, the

Fourth Circuit held, the “minimum conduct necessary to sustain a conviction for

Virginia common law robbery does not necessarily include [] ‘violent force.’” Id. at

685.

In United States v. Yates, 866 F.3d 723 (6th Cir. 2017), the Sixth Circuit

expressly aligned itself with the Fourth Circuit, in holding that the Ohio statutory

robbery offense does not qualify as an ACCA violent felony, given Ohio appellate

decisions confirming that a robbery by “use of force” under the statute could be

accomplished by the minimal amount of force necessary to snatch a purse

involuntarily from an individual, or simply “bumping into an individual.” Yates,

866 F.3d at 730-731 (noting accord with the Fourth Circuit in Gardner, 823 F.3d at

803-804, where “even minimal contact may be sufficient to sustain a robbery

20

conviction if the victim forfeits his or her property in response.”) The force applied

by the defendant in such circumstances, the Sixth Circuit noted, was demonstrably

“lower than the type of violent force required by [Curtis] Johnson.” 866 F.3d at 729.

The Sixth Circuit noted with significance that in State v. Carter, 29 Ohio

App.3d 148, 504 N.E.2d 469 (1985), a purse snatching case, the court had affirmed a

robbery conviction where the victim simply had a firm grasp of her purse, the

defendant pulled it from her, and then pulled her right hand off her left hand where

she was holding the bottom of the purse. Id. at 470-471(explaining that this simple

incident involved the requisite degree of actual force, “however miniscule” to

constitute a robbery; citing as support State v. Grant, 1981 WL 4576 at *2 (Ohio Ct.

App. Oct. 22, 1981), which had held that a mere “bump is an act of violence” within

the meaning of the robbery statute, “even though only mildly violent, as the statute

does not require a high degree of violence”).

And in another Ohio purse snatching case, In re Boggess, 2005 WL 3344502

(Ohio Ct. App. 2005), the Sixth Circuit noted, the appellate court had clarified that

the “force” requirement in the Ohio robbery statute would be satisfied so long as the

offender “physically exerted force upon the victim’s arm so as to remove the purse

from her involuntarily.” 866 F.3d at 731 (emphasis added). In Boggess, the

defendant simply grabbed the victim’s purse, then jerked her arm back, and kept

running.” Id. at 729. Finally, in State v. Juhasz, 2015 WL 5515826 (Ohio Ct. App.

2015), an Ohio court confirmed that so long as there was “a struggle over control of

an individual’s purse” in any degree, that would be sufficient to establish the

21

“element of force” in the statute. The “struggle need not be prolonged or active; the

act of forcibly removing a purse from an individual’s shoulder is sufficient.” Id. at

729-730. While the Juhasz court did not specifically discuss the common law roots of

the “struggle” concept in the Ohio robbery caselaw, that is a concept that derives

directly from the common law.

Based upon the Ohio caselaw highlighted in Yates, the Sixth Circuit found a

“realistic probability” that Ohio applied its robbery statute “in such a way that

criminalizes a level of force lower than the type of force required by [Curtis]

Johnson.” 2017 WL 3402084 at *5 (citing Moncrieffe, 133 S.Ct. at 1684). And

notably, Florida caselaw – like North Carolina, Virginia, and Ohio caselaw –

likewise confirms that violent force is not necessary to overcome victim resistance,

and commit a robbery under Fla. Stat. § 812.13(1) either. Like the North Carolina

common law robbery offense addressed in Gardner, the Virginia common law

robbery offense addressed in Winston, and the Ohio statutory robbery offense

addressed in Yates, a Florida statutory robbery may also be committed by the slight

force sufficient to overcome a victim’s slight resistance. Indeed, as the Ninth Circuit

correctly noted in Geozos, Florida’s own appellate law easily confirms this point.7

7 Notably, the Ninth Circuit has just ruled similarly for the Arizona statutory robbery offense. See United States v. Molinar, ___ F.3d ___, 2017 WL 5760565 at *4 (9th Cir. Nov. 29, 2017) (Ariz. Rev. Stat. § 1904 did not meet the career offender elements clause because Arizona courts had not required the “overpowering force” element “to be violent in the sense discussed by the Supreme Court in Johnson;” they had recognized that if an article is attached in some way, “so ‘as to create resistance however slight,” the offense becomes robbery;” thus, “minor scuffles,” including those involving bumping or grabbing where the victim was not harmed, are “insufficiently violent to qualify as force under Johnson”); United States v. Jones, ___ F.3d ___, 2017 WL 6495827 (9th Cir. Dec. 15, 2017) (Molinar’s holding

22

Had the Fourth and Sixth Circuits considered the Florida courts of appeals

decisions in Hayes, Benitez-Saldana, Sanders, and Winston Johnson – and

compared them to the state appellate decisions they considered in Gardner,

Winston, and Yates – these circuits would likely have recognized that a Florida

statutory robbery (just like a North Carolina common law robbery, a Virginia

common law robbery, and an Ohio statutory robbery) requires only minimal force to

overcome victim resistance. And for that reason, these circuits – like the Ninth

Circuit – would likely have found Petitioner’s robbery convictions were no longer

ACCA “violent felonies.”

As noted supra, it has always been the law in Florida (as in North Carolina,

and other common law robbery states) that the degree of force used in a robbery is

“immaterial.” Montsdoca v. State, 93 So. at 159. And, as the Fourth Circuit

recognized in Gardner, a standard requiring that force overcome resistance, but

reaffirming that the degree of force used is “immaterial,” suggests that so long as a

victim’s resistance is slight, a defendant need only use minimal force to commit a

robbery. The standards in Sawyer and Montsdoca are similarly worded and

functionally indistinguishable.

Plainly, the act of peeling back the victim’s fingers in Sanders is functionally

equivalent to the act of pushing away the victim’s hand in Chance. Both acts

allowed the defendants to overcome the victim’s resistance and remove the

cigarettes (in Chance) and the cash (in Sanders) from the victim’s grasp. But

applied equally to whether Arizona armed robbery was a “violent felony” under the ACCA’s elements clause).

23

neither act rises to the level of “violent force’ required by Curtis Johnson. And

plainly, the “bump” in Hayes is indistinguishable from the “bump” in Grant, and the

“push” in Eldridge. If anything, the “push” in Eldridge was more forceful in that it

caused the victim to fall onto shelves, while the victims in Hayes and Grant did not

even fall.

Moreover, the “bump” in Hayes appears to involve even less than the “extent

of resistance” in the Virginia Jones case – which was the defendant’s “jerking” of the

victim’s purse, which caused her to “turn and face” the defendant, but was not

strong enough to cause the victim to fall down. Winston, 850 F.3d at 685 (citing

Jones, 496 S.E. 2nd at 669-670). And while the purse snatching accompanied by the

jerking of the victim’s arm in the Ohio Boggess case is analogous to the purse

snatching that the Fourth Circuit found insufficiently violent in Jones, Florida law

notably suggests that something even less than either a “bump” or the “jerking” of

the victim’s arm during a purse snatching – namely, such de minimis conduct as

simply “jostling” a victim during a pickpocketing, see Rigell v. State, 782 So.2d 440,

442 (Fla. 4th DCA 2001)(approving LaFave’s example) – will constitute sufficient

“force” to “overcome resistance,” take a person’s property, and seal a Florida robbery

conviction.

Had Petitioner’s case been decided by the Gardner, Winston, or Yates courts –

rather than an Eleventh Circuit panel bound by Fritts – Petitioner would not be

facing an enhanced ACCA sentence today.

24

C. The decision below is wrong

The decision below is wrong because Fritts is wrong. The Eleventh Circuit

made unwarranted assumptions in Fritts as to the level of force required to

overcome resistance. Not only did the court disregard the common law roots of this

requirement; it disregarded that the Florida courts’ interpretation of “overcoming

resistance” to this day has been consistent with the approach at common law: the

degree of force used is “immaterial.” As the Ninth Circuit correctly noted in Geozos,

the “Eleventh Circuit, in focusing on the fact that Florida robbery requires a use of

force sufficient to overcome the resistance of the victim, has overlooked the fact

that, if the resistance itself is minimal, then the force used to overcome that

resistance is not necessarily violent force.” 870 F.3d at 901. In overlooking that

key point, and failing to consult the intermediate appellate decisions illuminating

the scope of Florida’s “overcoming resistance” element, the court below committed a

clear error of law under this Court’s precedents that infected its ultimate

conclusion.

The Eleventh Circuit has consistently ignored this Court’s precedents, which

confirm that not all “force” qualifies as “physical force” for purposes of the ACCA

elements clause. Notably, when Curtis Johnson defined the term “physical force” as

“violent force—that is, force capable of causing pain or injury to another person,”

559 U.S. at 140, both before and after that 15-word definition, the Court made clear

that “violent force” was measured by the “degree” or “quantum” of force. Id. at 139,

140, 142 (referring to “substantial degree of force” involving “strength,” “vigor,”

25

“energy,” “pressure,” and “power”). While a mere nominal touching did not meet

that standard, the only specific conduct Curtis Johnson mentioned as necessarily

involving the requisite degree of “violent force” was a “slap in the face,” since the

force used in slapping someone’s face would necessarily “inflict pain.” Id. at 143.

Beyond that single example of a classic battery by striking, the Court did not

mention any other category of conduct that would inflict an “equivalent” degree of

pain or injury to categorically meet its new “violent force” definition.

Thereafter, in United States v. Castleman, 572 U.S. __, 134 S. Ct. 1405

(2014), in the course of adopting the broader common-law definition of “physical

force” for a “misdemeanor crime of domestic violence” under 18 U.S.C. § 922(g)(9),

rather than Curtis Johnson’s “violent force” definition, the Court emphasized that

that “domestic violence” encompasses a range of force broader than ‘violence’

simpliciter.” Id. at 1411 n.4 (emphasis in original). Relevant here, the Court

observed that “most physical assaults committed against women and intimates are

relatively minor,” and include “pushing, grabbing, [and] shoving.” Id. at 1412

(citations omitted). The Court opined that such “[m]inor uses of force may not

constitute ‘violence’ in the generic sense.” Id. As one such “example,” the Court

pointed out that, in Curtis Johnson, it had cited “with approval” Flores v. Ashcroft,

350 F.3d 666, 670 (7th Cir. 2003), where the Seventh Circuit had noted that it was

‘hard to describe . . . as ‘violence’” “a squeeze of the arm [that] causes a bruise.” Id.

That deliberate approval suggests that the dividing line between violent and

non-violent “force” lies somewhere between a slap to the face and a bruising squeeze

26

of the arm. On that view, certainly the “bump” (without injury) in Hayes would

constitute similarly “minor” and thus non-violent force. The same is also true of

unpeeling the victim’s fingers without injury in Sanders. And even though the

grabbing of an arm during a tug-of-war in Benitez-Saldana caused “an abrasion,”

and there was a “slight injury” to the victim’s hand by the offender’s grabbing

money and tearing off a scab in Winston Johnson, just like the bruising squeeze to

the arm discussed in Castleman, which likewise resulted in a minor injury, such

conduct does not constitute “violence” in the generic sense.

Finally, it is notable that Justice Scalia—writing only for himself—opined in

Castleman that shoving, grabbing, pinching, and hair pulling would all meet the

Curtis Johnson definition of “violent force,” since (in his view) each of these actions

was “capable of causing physical pain or injury.” Id. at 1421-1422 (Scalia, J.,

concurring in the judgment). Significantly, however, no other member of the Court

joined that view. That is so because such conduct—constituting more than an

unwanted touch, but less than a painful slap to the face—entails only a minor use

of force, not strength, vigor, or power. It thus lacks the degree of force necessary to

qualify as violent. And because Florida robbery may unquestionably be committed

by such conduct, it is not categorically a violent felony under the ACCA’s elements

clause.

D. This is an ideal vehicle for certiorari

Given the direct circuit split between the Ninth and Eleventh Circuits, the

tension between Fritts and decisions of other circuits reviewing analogous common

27

law robbery offenses, and the clear error in the decision below, this case presents an

ideal vehicle for the Court to resolve the inconsistencies among the lower courts,

and reinforce what it said in Curtis Johnson — that “physical force” requires

“violent force,” and that is “a substantial degree of force.” 559 U.S. at 140. At a

minimum, the Court should clarify, “violent force” requires more than the type of

minor conduct that has sufficed for robbery convictions in Florida and other

common law robbery states: namely, bumping the victim, unpeeling the victim’s fist

clenching money, or engaging in a tug-of-war over a purse.

Notably, the issue as to whether such minor conduct involved in overcoming

resistance under the Florida statute necessitates the Curtis Johnson level of

“violent force” was fully preserved before the court of appeals in this case.

Petitioner specifically urged the Eleventh Circuit to follow Benitez-Saldana – the

precise Florida appellate decision that convinced the Ninth Circuit that a Florida

robbery does not necessitate “violent force,” and resulted in the direct conflict

between the Eleventh and Ninth Circuits. After Fritts was decided, he raised the

broader conflict with other circuits before the district court and on appeal. And

after Geozos was decided, he alerted the Eleventh Circuit to the direct conflict with

the Ninth Circuit, to no avail.

Most importantly, resolution of that conflict in his favor will be case-

dispositive. If Petitioner’s Florida armed robbery conviction does not qualify as an

ACCA predicate, his 188-month sentence must be vacated. He will be ineligible for

28

his current sentence, which far exceeds the otherwise applicable 10-year statutory

maximum. And he will face a much lower term under the Guidelines.

And plainly, a grant of certiorari in this case will not only be important for

Petitioner. It will be important for the many similarly-situated defendants facing

enhanced ACCA sentences based upon Florida robbery, and those potentially facing

enhanced sentences based upon analogous common law robbery offenses throughout

the country. Moreover, a grant of certiorari on the issue raised herein would be

independently important for an additional reason: In the three decades that have

passed since Congress amended the original version of the ACCA to delete “robbery”

and “burglary” as automatic ACCA predicates, replacing those two specific crimes

with broader “violent felony” definitions designed to better target the most

dangerous gun offenders – three decades in which the Court has granted certiorari

multiple times to determine whether state burglary offenses were proper ACCA

predicates. See, e.g., Taylor v. United States, 495 U.S. 575 (1990); James v. United

States, 550 U.S. 192 (2007); Descamps v. United States, ___ U.S. ___, 133 S.Ct. 2276

(2013); and Mathis v. United States, ___ U.S. ___, 136 S.Ct. 2243 (2016) – the Court

has never considered whether any state robbery conviction fell within either the

elements (or residual) clauses. That question looms large after elimination of the

residual clause, since the elements clause has taken center stage in ACCA

litigation, and robbery remains to this day one of the most common ACCA

predicates.

The Court expressly left open t he Florida robbery elements-clause question in

Welch u. United States, 578 U.S. _, 136 S.Ct. 1257, 1268 (2016). The time has

come for a definitive resolution.

CONCLUSION

The disparate treatment of identically-situated defendants is inequitable,

and must come to an end. The Court should grant the writ.

Miami, F lorida February 12, 2018

Respectfully submitted,

MICHAEL CARUSO FEDERAL PUBLIC DEFENDER

By: l J::ic..o- ·:;££~ Vanessa L. Chen Assistant Federal Public Defender Counsel for Petitioner

29